The UK has published its plans for “avoiding a hard border in Northern Ireland in a no deal scenario”. The timing of this release is quite bizarre.
It could not be intended as proof that the backstop really isn’t so bad for Northern Ireland, coming as it did after the defeat of the Withdrawal Agreement.
It came instead on the day of the debate on no-deal in Westminster. This vote in itself was really just a performance for the amusement of the actors concerned.
The EU could have little interest in the result, which makes no difference as to what actually needs to happen to “take no deal off the table” (i.e. for Westminster to pass the Withdrawal Agreement or to revoke Article 50).
So, perhaps the simple purpose of releasing a paper on managing the Irish Border in a no-deal scenario was merely to indicate that the UK government does at least have some vague plans in that regard.
If those leaving Northern Ireland are subject to such tariffs, northern exporters and producers will effectively have their legs cut out from under them
Unfortunately, what the document and its timing inadvertently reveal is that the UK government genuinely does not appear to understand the harm that these arrangements will cause to Northern Ireland.
Once the UK government got the message that a hard border must be avoided it appears to have become their overarching objective in dealing with Northern Ireland post-Brexit.
It would explain why it is that there has been an obsession with the speck of ensuring no visible or physical infrastructure at the Border, whilst ignoring the dangers being posed to the 1998 Good Friday Agreement by the red-line-strewn approach to the process of Brexit itself.
Perhaps in issuing this cunning plan, the UK government thinks it is proving that it is, after all, possible to simply not put up a border after Brexit. But even brief consideration of the implications of this approach to avoiding “new checks or controls at the Border” reveals a plethora of serious risks and omissions.
Risks
First, although these plans claim to outline a “strictly unilateral, temporary approach”, in practice a “unilateral” approach to border management is a misnomer.
Not only are there two sides to each border, “frictionless” border management requires close co-operation between them. What the Irish government decide to do on the southern side of the Border is, obviously, absolutely critical.
And Northern Ireland businesses are nervous about this.
For its part, the EU is not going to want to mirror the UK in a possible breach of the World Trade Organisation’s (WTO) Most Favoured Nation principle on this one.
Ireland will have difficult decisions to make, and soon.
For now, though, to take the unilateral statement on no-deal plans from the UK government on its own terms: goods coming into the north cross the land border would not be subject to tariffs or controls.
It is lamentable that these arrangements could come into play because the legally-secure and hard-won backstop proved too controversial
But if those leaving Northern Ireland are subject to such tariffs, northern exporters and producers will effectively have their legs cut out from under them.
Secondly, it is emphasised that these arrangements would just be “temporary”. A familiar question then arises: how do you get out of it?
The Protocol on Northern Ireland/Ireland at least had (as British attorney general Geoffrey Cox confirmed) review and arbitration mechanisms, as well as the right to suspend provisions.
This arrangement has none of that.
In fact, the only way of getting out of these measures rests on the UK commitment to “enter discussions urgently” with the EU and Irish government on long-term measures to avoid a hard Irish Border.
Even leaving aside the paucity of goodwill and trust in a no-deal scenario, we should not underestimate how difficult these negotiations will be. And will the measures be all-UK or Northern Ireland-specific?
If the former, they will be long and complicated to negotiate. If the latter, they will be difficult to match with WTO rules, let alone with unionist approval.
Cruel business
Indeed, it is worth asking whether these arrangements will be legal.
The UK would be determining not to explicitly treat Ireland favourably but to apply different rules on imports at different parts of its state border.
This would make entry to Great Britain via Northern Ireland an attractive prospect for exporters from across the EU wishing to avoid tariffs. Even with an “honesty box” system for EU companies bringing goods into Britain (in an effort to avoid requiring declarations from all goods crossing the Irish Sea), the risk and incentives for illegal activity skyrocket.
And avoiding tariffs will be even less of an incentive for smuggling than that of avoiding tax.
In order to avoid the requirement that tax be paid on goods at the point of entry (i.e. the Border), the UK government is to rely on a system of postponed accounting.
How effective this will be without rigorous and well-established systems of registration, tracking and enforcement is a moot point.
It is lamentable that these arrangements could come into play because the legally-secure and hard-won backstop to avoid a hard Irish Border proved too controversial.
And that they would do so at such a price to Northern Ireland indigenous business is the cruellest blow.